A co-sharer of an adjoining holding can maintain an application for pre-emption under Section 8 of the West Bengal Land Reforms Act on the ground of adjoining ownership, even if they do not have a common boundary with the transferred land.

( 1 ) THIS revisional application under section 115 of the Code of Civil Procedure is at the instance of an opposite party in a proceeding for pre-emption under section 8 of the West Bengal Land Reforms Act ("act") and is directed against order dated September 23, 1999 passed by the learned Additional District Judge, 2nd Court, Midnapore in Judicial Misc. Appeal No. 68 of 1994 thereby reversing order dated April 21, 1994 passed by the learned Munsif, Garhbeta in Judicial Misc. Case No. 22 of 1991.

( 2 ) THE opposite parties filed the aforesaid Misc. Case No. 22 of 1991 under section 8 of the Act for pre-emption of sale effected through a registered deed dated March 27, 1989 in favour of the present petitioner on the ground of adjoining ownership.

( 3 ) THE aforesaid application was contested by the present petitioner by filing written objection thereby contending, inter alia, that the opposite parties were merely co-sharers of adjoining holding but could not be said to be adjoining owners of the property transferred and as such the application was liable to be dismissed.

( 4 ) THE learned trial Judge on consideration of the materials on record held that in view of the fact that the present petitioner purchased only a portion of a holding and the opposite parties being co-sharers of the adjoining holding which was yet to be partitioned by metes and bounds, it could not be said that the opposite parties were adjoining owners of the land actually transferred by the deed in question and accordingly dismissed the application.

( 5 ) BEING dissatisfied, the opposite parties preferred an appeal being Misc. Appeal No. 68 of 1994 and by the order impugned herein the learned first appellate Court below has set aside the order passed by the learned trial Judge and allowed the application for pre-emption on the ground of adjoining ownership.

( 6 ) BEING dissatisfied, the petitioner has come up in revision.

( 7 ) MR. Banerjee, the learned counsel appearing on behalf of the petitioner has raised two points in support of this application.

( 8 ) FIRSTLY, Mr. Banerjee contends that the opposite parties themselves having admitted in evidence that they are co-sharers of the adjoining holding and that there was no partition among the co-sharers of that holding, it cannot be said that the opposite parties are adjoining owners of the land covered by the sale sought to be pre-empted.

( 9 ) MR. Banerjee next contends that the petitioner by the said transaction having purchased only a portion of the holding of his vendor, and there being no common bundary between the purchased portion and the holding of the opposite parties, the application for pre-emption was not maintainable. In support of such contention Mr. Banerjee has relied upon the following decisions of this Court : (a)smt. Rekha Rani Maity and Ors. v. Jagatpati Sashmal; 1995 WBLR (Cal) Page 263, (b)dushasan Kayal v. Sandharani Das; 1997 (2) CLT page 107, (c)khagendra Nath Panda v. Gaya Prasad Sahu; 1987 (1) CHN page 88,

( 10 ) IN the case of Rekha Rani Maity and Ors. (supra) it was contended on behalf of the pre-emptee that on the date of filing of the application for pre-emption, the pre-emptee had already became a co-sharer in the disputed holding by virtue of a subsequent deed of exchange which was registered on the same day along with the deed sought to be pre-empted and as such the pre-emption application was not maintainable. It was contended therein that in order to obtain an order for pre-emption it was necessary that the conditions for maintaining an application for pre-emption should exist not only at the time of disputed transaction but also at the time of presentation of the proceeding or at the time of passing final order. This Court accepted such contention and held that in view of the fact that the pre-emptee became a co-sharer of the holding by virtue of subsequent deed of exchange, he ceased to be a stranger of the holding.

( 11 ) IN the said dec